HB-4863, As Passed House, June 7, 2012

SUBSTITUTE FOR

HOUSE BILL NO. 4863

A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending sections 6233, 6235, 6236, 6237, 6238, 6241, 6243,

6251, 7408a, 16106a, and 16221 (MCL 333.6233, 333.6235, 333.6236,

333.6237, 333.6238, 333.6241, 333.6243, 333.6251, 333.7408a,

333.16106a, and 333.16221), section 7408a as amended by 1999 PA

144, section 16106a as added by 1993 PA 80, and section 16221 as

amended by 2011 PA 222, and by adding sections 6230, 6234, and

6249.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 6230. As used in this part:

(a) "Department" means the department of licensing and

regulatory affairs.

(b) "Director" means the director of the department or his or

her designee.

disorder prevention services or substance use disorder treatment

and rehabilitation services, or both, as those terms are defined in

section 100d of the mental health code, 1974 PA 258, MCL 330.1100d.

Sec. 6233. (1) A person not otherwise licensed to provide

psychological, medical, or social services shall not establish,

conduct, or maintain a substance ~~abuse service~~ use disorder

services program unless it is licensed under this ~~article.~~part.

(2) The ~~administrator~~ department shall establish a licensing

unit ~~in the office~~ to administer the licensing functions of this

~~article.~~part.

(3) This section ~~shall~~ does not apply to a private, nonprofit

~~organizations~~ organization exempt under section 501(c)(3)of the

internal revenue code, ~~which have~~ 26 USC 501, that has been in

existence ~~for more than 13 years prior to the enactment of this~~

~~code~~ since before September 30, 1965 and whose major purpose is to

provide residential services for the redirection and improvement of

drug abusers and other character disordered individuals.

Sec. 6234. The department may promulgate rules under the

administrative procedures act of 1969 for the administration of

this part and the licensing of substance use disorder services

programs under this part. Rules promulgated under former section

6231 relating to the licensing of substance use disorder services

programs remain effective and applicable on and after the effective

date of this section until rules are promulgated by the department

under this section.

Sec. 6235. (1) An application for a license shall be in a form

prescribed by the ~~office~~ department and shall authorize the

~~administrator or his or her representative~~ director to obtain from

any source information as to the ability of the applicant to comply

with this ~~article~~ part and rules promulgated under this

~~article.~~part.

(2) An applicant for an initial license shall include evidence

of notice to churches, schools, and incorporated nonprofit civic

organizations in the applicant's service delivery area of its

intent to provide substance ~~abuse treatment and rehabilitation~~

~~services or prevention~~ use disorder services.

Sec. 6236. The ~~local advisory council on substance abuse~~

department shall provide an opportunity for individuals in the

applicant's service delivery area to comment before the issuance of

a license to the applicant. The ~~comments shall be included in the~~

~~coordinating agency's comments to the office. However, the~~

~~administrator~~ department shall make the decision to issue or deny a

license based on the applicant's ability to comply with the

requirements of this ~~article~~ part and rules promulgated under this

~~article~~ part. If the administrative decision ~~on licensing~~ is

~~contrary to the local coordinating agency's recommendations~~ the

denial of a license, the ~~administrator~~ department shall describe

~~those~~ the reasons for the denial in writing to the ~~local~~

~~coordinating agency~~ applicant at the time the decision is rendered.

Sec. 6237. The ~~office~~ department shall issue a license upon

determining that the applicant has complied with this ~~article~~ part

and rules promulgated under this ~~article~~ part. A licensee shall

prominently display the license while it is in effect.

Sec. 6238. A standard license issued under this part is

effective for 1 year after the date of issuance. A The department

may issue a provisional license ~~may be issued~~ to an applicant

temporarily unable to comply with this part or the rules

promulgated under this ~~article and~~ part. The department may be

~~renewed or extended~~ renew or extend a provisional license issued

under this section for not more than 1 year. A The department may

issue a temporary, nonrenewable permit ~~may be issued~~ for not more

than 90 days if additional time is needed for the department to

properly investigate or for the applicant to undertake remedial

action.

Sec. 6241. The ~~administrator, his or her agent,~~ director or

the personnel of another department or agency acting at the request

of the ~~administrator~~ director may enter the premises of an

applicant for a license or a licensee at any reasonable time to

make an inspection to determine whether the applicant or licensee

is complying with this ~~article~~ part and rules promulgated under

this ~~article~~ part. A local health department may visit a facility

at the request of the ~~administrator~~ director to advise as to

matters affecting health and the sanitation of the buildings used

or other matters designated by the ~~administrator~~ director. The

inspections shall be conducted in accordance with standards

established in rules.

Sec. 6243. ~~With the assistance of the~~ The department ~~, the~~

~~administrator~~ may deny, suspend, revoke, or refuse to renew a

license of an applicant or licensee who is in violation of this

~~article~~ part or rules promulgated under this ~~article~~ part after

opportunity for a hearing. A hearing and an appeal in a contested

case shall be conducted by the director ~~or the director's~~

~~authorized representative~~ pursuant to the administrative procedures

act of 1969.

Sec. 6249. (1) An individual or an agent, representative, or

officer of a person subject to this part, which individual, agent,

representative, or officer violates this part, is guilty of a

misdemeanor.

(2) A conviction for a violation of this part is a sufficient

ground for revocation of the license of the person subject to this

part.

Sec. 6251. Notwithstanding the existence of any other remedy,

the ~~office~~ department may maintain an action in the name of this

state for an injunction or other process against a person to

restrain or prevent the establishment, conduct, management, or

operation of a substance ~~abuse service~~ use disorder services

program without a license or where operation of the licensee's

~~service~~ program is likely to result in serious harm to recipients

of the ~~service~~ substance use disorder services.

Sec. 7408a. (1) As part of the sentence or juvenile

disposition for an attempt to violate, a conspiracy to violate, or

a violation of this part ~~or section 17766a~~ or of a local ordinance

that prohibits conduct prohibited under this part, ~~or section~~

~~17766a,~~ the court shall consider all prior convictions currently

entered upon the criminal history record and Michigan driving

record of the person, except those convictions which, upon motion

of the defendant, are determined by the court to be

constitutionally invalid, and, subject to subsection (11), shall

impose the following licensing sanctions in addition to any other

penalty or sanction imposed for the violation:

(a) If the court finds that the person does not have a prior

conviction within 7 years of the violation, the court shall order

the secretary of state to suspend the operator's or chauffeur's

license of the person for 6 months. If the court finds compelling

circumstances under subsection (8) sufficient to warrant the

issuance of a restricted license, the court may order the secretary

of state to issue to the person a restricted license during all or

a specified portion of the period of suspension, except that a

restricted license shall not be issued during the first 30 days of

the period of suspension.

(b) If the court finds that the person has 1 or more prior

convictions within 7 years of the violation, the court shall order

the secretary of state to suspend the operator's or chauffeur's

license of the person for 1 year. If the court finds compelling

circumstances under subsection (8) sufficient to warrant the

issuance of a restricted license, the court may order the secretary

of state to issue to the person a restricted license during all or

any portion of the period of suspension, except that a restricted

license shall not be issued during the first 60 days of the period

of suspension.

(2) The person whose operator's or chauffeur's license is

ordered suspended under this section shall immediately surrender

his or her operator's or chauffeur's license to the court. The

court shall immediately destroy the license and forward an abstract

of conviction with court-ordered license sanctions to the secretary

of state. Upon receipt of, and pursuant to, the abstract of

conviction with court-ordered license sanctions, the secretary of

state shall suspend the person's license and, if ordered by the

court and if the person is otherwise eligible for a license, issue

to the person a restricted license stating the limited driving

privileges indicated on the abstract. If the judgment is appealed

to circuit court, the court may, ex parte, order the secretary of

state to stay the suspension or license restriction issued under

this section pending the outcome of the appeal.

(3) Except as otherwise provided in subsection (5), before

imposing sentence or entering a juvenile disposition, other than

court-ordered license sanctions under this section, for an attempt

to violate, a conspiracy to violate, or a violation of this part or

~~section 17766a~~ or of a local ordinance that prohibits conduct

prohibited under this part, ~~or section 17766a,~~ the court may order

the person to undergo screening and assessment by a person or

agency as designated by ~~the office of substance abuse services~~ a

prepaid inpatient health plan or a community mental health services

program under the mental health code, 1974 PA 258, MCL 330.1001 to

330.2106, to determine whether the person is likely to benefit from

rehabilitative services, including alcohol or drug education and

alcohol or drug treatment programs. The person shall pay for the

costs of the screening and assessment services.

(4) Except as otherwise provided in subsection (5), as part of

the sentence or juvenile disposition for an attempt to violate, a

conspiracy to violate, or a violation of this part ~~or section~~

~~17766a~~ or of a local ordinance that prohibits conduct prohibited

under this part, ~~or section 17766a,~~ the court may order the person

to do 1 or both of the following:

(a) Perform service to the community for not more than 90

days. A person ordered to perform service to the community under

this subdivision shall not receive compensation, and shall

reimburse the state or appropriate local unit of government for the

cost of supervision incurred by the state or local unit of

government as a result of the person's activities in that service.

(b) Participate in and successfully complete 1 or more

appropriate rehabilitative programs. The person shall pay for the

costs of the rehabilitative services.

(5) Subsections (3) and (4) do not apply to a person who is

not eligible for probation under chapter XI of the code of criminal

procedure, 1927 PA 175, MCL 777.1 to 777.14a.

(6) A restricted license issued in compliance with an order

under this section shall permit the person to whom it is issued to

drive under the following circumstances:

(a) In the course of the person's employment or occupation.

(b) To and from any combination of the following:

(i) The person's residence.

(ii) The person's work location.

(iii) An alcohol or drug education or treatment program as

ordered by the court.

(iv) The court probation department.

(v) A court-ordered community service program.

(vi) An educational institution at which the person is enrolled

as a student.

(vii) A place of regularly occurring medical treatment for a

serious condition for the person or a member of the person's

household or immediate family.

(7) The court shall not order the secretary of state under

this section to issue a restricted license that would permit a

person to operate a commercial motor vehicle that hauls hazardous

material.

(8) The court shall not order the secretary of state under

this section to issue a restricted license unless the person states

under oath, and the court finds by testimony taken in open court or

by statements contained in a sworn affidavit on a form prescribed

by the state court administrator, that both of the following apply:

(a) The person needs vehicular transportation to and from his

or her work location, place of alcohol or drug education treatment,

court probation department, court-ordered community service

program, or educational institution, or in the course of the

person's employment or occupation.

(b) The person is unable to take public transportation and

does not have any family members or other individual able to

provide transportation to a destination or for a purpose described

in subdivision (a).

(9) Regardless of a court order issued under this section, the

secretary of state shall not issue a restricted license to a person

whose license is suspended under this section unless a restricted

license is authorized under this section and the person is

otherwise eligible for a license.

(10) While driving, the person shall carry proof of his or her

destination and the hours of any employment, class, or other reason

for traveling and shall display that proof upon a peace officer's

request.

(11) A court shall not order the suspension of a person's

license if the person is sentenced to life imprisonment or to a

minimum term of imprisonment that exceeds 1 year for an attempt to

violate, a conspiracy to violate, or a violation of this part. 74

~~or section 17766a.~~

(12) The court shall do both of the following:

(a) Transmit a record of each order issued under this section

to the secretary of state.

(b) Forward to the department of state police, on a form or

forms prescribed by the state court administrator, a record that

specifies the penalties imposed by the court for an offense

described in subsection (1), including a licensing sanction ordered

under this section and a term of imprisonment imposed for the

offense.

(13) Except as otherwise provided by law, a record described

in subsection (12) is a public record, and the department of state

police shall retain the information contained in that record for

not less than 7 years.

(14) As used in this section:

(a) "Commercial motor vehicle" means that term as defined in

section 7a of the Michigan vehicle code, 1949 PA 300, MCL 257.7a.

(b) "Conviction" means a final conviction, a plea of guilty or

nolo contendere if accepted by the court, a finding of guilt, a

probate court disposition, or a juvenile adjudication, for a

criminal law violation, regardless of whether the penalty is

rebated or suspended.

19b of the Michigan vehicle code, 1949 PA 300, MCL 257.19b.

(d) "Juvenile disposition" means either of the following:

(i) A finding of juvenile delinquency under ~~chapter 403 of~~

~~title 18 of the United States Code, 18 U.S.C. 5031 to 5040 and 5042~~

18 USC 5031 to 5042.

(ii) The entry of a judgment or order of disposition by a court

of another state that states or is based upon a finding that a

juvenile violated a law of another state that would have been a

criminal offense if committed by an adult in that state.

(e) "Law of another state" means a law or ordinance enacted by

another state or by a local unit of government in another state.

~~(f) "Office of substance abuse services" means the agency~~

~~created by section 6201.~~

(f) ~~(g)~~ "Prior conviction" means either of the following:

(i) A conviction for an attempt to violate, a conspiracy to

violate, or a violation of this part 74 or former section 17766a, a

local ordinance that prohibits conduct prohibited under this part

74 or former section 17766a, or a law of another state that

prohibits conduct prohibited under this part 74 or former section

17766a.

(ii) A conviction for an attempt to violate, a conspiracy to

violate, or a violation of the controlled substances act, ~~title II~~

~~of the comprehensive drug abuse prevention and control act of 1970,~~

~~Public Law 91-513, 84 Stat. 1242~~ 21 USC 801 to 971.

(g) ~~(h)~~ "Probate court disposition" means the entry of a

probate court order of disposition for a child found to be within

the provisions of chapter XIIA of the probate code of 1939, 1939 PA

288, MCL 712A.1 to ~~712A.28~~ 712A.32.

(h) ~~(i)~~ "Work location" means, as applicable, either the

specific place or places of employment, or the territory or

territories regularly visited by the person in pursuance of the

person's occupation, or both.

Sec. 16106a. "Impaired" or "impairment" means the inability or

immediately impending inability of a health professional to

practice his or her health profession in a manner that conforms to

the minimum standards of acceptable and prevailing practice for

that health profession due to the health professional's substance

abuse, chemical dependency, or mental illness or the health

professional's use of drugs or alcohol that does not constitute

substance abuse or chemical dependency. As used in this section:

(a) "Chemical dependency" means a group of cognitive,

behavioral, and physiological symptoms that indicate that an

individual has a substantial lack of or no control over the

individual's use of 1 or more psychoactive substances.

(b) "Mental illness" means that term as defined in ~~section~~

~~400a of the mental health code, Act No. 258 of the Public Acts of~~

~~1974, being section 330.1400a of the Michigan Compiled Laws~~ section

400 of the mental health code, 1974 PA 258, MCL 330.1400.

as defined in section ~~6107~~ 100d of the mental health code, 1974 PA

258, MCL 333.1100d.

Sec. 16221. The department may investigate activities related

to the practice of a health profession by a licensee, a registrant,

or an applicant for licensure or registration. The department may

hold hearings, administer oaths, and order relevant testimony to be

taken and shall report its findings to the appropriate disciplinary

subcommittee. The disciplinary subcommittee shall proceed under

section 16226 if it finds that 1 or more of the following grounds

exist:

(a) A violation of general duty, consisting of negligence or

failure to exercise due care, including negligent delegation to or

supervision of employees or other individuals, whether or not

injury results, or any conduct, practice, or condition that

impairs, or may impair, the ability to safely and skillfully

practice the health profession.

(b) Personal disqualifications, consisting of 1 or more of the

following:

(i) Incompetence.

(ii) Subject to sections 16165 to 16170a, substance ~~abuse~~ use

disorder as defined in section ~~6107.~~100d of the mental health code,

1974 PA 258, MCL 333.1100d.

(iii) Mental or physical inability reasonably related to and

adversely affecting the licensee's ability to practice in a safe

and competent manner.

(iv) Declaration of mental incompetence by a court of competent

jurisdiction.

(v) Conviction of a misdemeanor punishable by imprisonment for

a maximum term of 2 years; a misdemeanor involving the illegal

delivery, possession, or use of a controlled substance; or a

felony. A certified copy of the court record is conclusive evidence

of the conviction.

(vi) Lack of good moral character.

(vii) Conviction of a criminal offense under section 520e or

520g of the Michigan penal code, 1931 PA 328, MCL 750.520e and

750.520g. A certified copy of the court record is conclusive

evidence of the conviction.

(viii) Conviction of a violation of section 492a of the Michigan

penal code, 1931 PA 328, MCL 750.492a. A certified copy of the

court record is conclusive evidence of the conviction.

(ix) Conviction of a misdemeanor or felony involving fraud in

obtaining or attempting to obtain fees related to the practice of a

health profession. A certified copy of the court record is

conclusive evidence of the conviction.

(x) Final adverse administrative action by a licensure,

registration, disciplinary, or certification board involving the

holder of, or an applicant for, a license or registration regulated

by another state or a territory of the United States, by the United

States military, by the federal government, or by another country.

A certified copy of the record of the board is conclusive evidence

of the final action.

(xi) Conviction of a misdemeanor that is reasonably related to

or that adversely affects the licensee's ability to practice in a

safe and competent manner. A certified copy of the court record is

conclusive evidence of the conviction.

(xii) Conviction of a violation of section 430 of the Michigan

penal code, 1931 PA 328, MCL 750.430. A certified copy of the court

record is conclusive evidence of the conviction.

(xiii) Conviction of a criminal offense under section 520b,

520c, 520d, or 520f of the Michigan penal code, 1931 PA 328, MCL

750.520b, 750.520c, 750.520d, and 750.520f. A certified copy of the

court record is conclusive evidence of the conviction.

(i) Fraud or deceit in obtaining or renewing a license or

registration.

(ii) Permitting the license or registration to be used by an

unauthorized person.

(iii) Practice outside the scope of a license.

(iv) Obtaining, possessing, or attempting to obtain or possess

a controlled substance as defined in section 7104 or a drug as

defined in section 7105 without lawful authority; or selling,

prescribing, giving away, or administering drugs for other than

lawful diagnostic or therapeutic purposes.

(d) Unethical business practices, consisting of 1 or more of

the following:

(i) False or misleading advertising.

(ii) Dividing fees for referral of patients or accepting

kickbacks on medical or surgical services, appliances, or

medications purchased by or in behalf of patients.

(iii) Fraud or deceit in obtaining or attempting to obtain third

party reimbursement.

(e) Unprofessional conduct, consisting of 1 or more of the

following:

(i) Misrepresentation to a consumer or patient or in obtaining

or attempting to obtain third party reimbursement in the course of

professional practice.

(ii) Betrayal of a professional confidence.

(iii) Promotion for personal gain of an unnecessary drug,

device, treatment, procedure, or service.

(iv) Either of the following:

(A) A requirement by a licensee other than a physician that an

individual purchase or secure a drug, device, treatment, procedure,

or service from another person, place, facility, or business in

which the licensee has a financial interest.

(B) A referral by a physician for a designated health service

that violates 42 USC 1395nn or a regulation promulgated under that

section. For purposes of this subparagraph, 42 USC 1395nn and the

regulations promulgated under that section as they exist on June 3,

2002 are incorporated by reference. A disciplinary subcommittee

shall apply 42 USC 1395nn and the regulations promulgated under

that section regardless of the source of payment for the designated

health service referred and rendered. If 42 USC 1395nn or a

regulation promulgated under that section is revised after June 3,

2002, the department shall officially take notice of the revision.

Within 30 days after taking notice of the revision, the department

shall decide whether or not the revision pertains to referral by

physicians for designated health services and continues to protect

the public from inappropriate referrals by physicians. If the

department decides that the revision does both of those things, the

department may promulgate rules to incorporate the revision by

reference. If the department does promulgate rules to incorporate

the revision by reference, the department shall not make any

changes to the revision. As used in this subparagraph, "designated

health service" means that term as defined in 42 USC 1395nn and the

regulations promulgated under that section and "physician" means

that term as defined in sections 17001 and 17501.

(v) For a physician who makes referrals pursuant to 42 USC

1395nn or a regulation promulgated under that section, refusing to

accept a reasonable proportion of patients eligible for medicaid

and refusing to accept payment from medicaid or medicare as payment

in full for a treatment, procedure, or service for which the

physician refers the individual and in which the physician has a

financial interest. A physician who owns all or part of a facility

in which he or she provides surgical services is not subject to

this subparagraph if a referred surgical procedure he or she

performs in the facility is not reimbursed at a minimum of the

appropriate medicaid or medicare outpatient fee schedule, including

the combined technical and professional components.

(f) Beginning June 3, 2003, the department of consumer and

industry services shall prepare the first of 3 annual reports on

the effect of 2002 PA 402 on access to care for the uninsured and

medicaid patients. The department shall report on the number of

referrals by licensees of uninsured and medicaid patients to

purchase or secure a drug, device, treatment, procedure, or service

from another person, place, facility, or business in which the

licensee has a financial interest.

(g) Failure to report a change of name or mailing address

within 30 days after the change occurs.

(h) A violation, or aiding or abetting in a violation, of this

article or of a rule promulgated under this article.

(i) Failure to comply with a subpoena issued pursuant to this

part, failure to respond to a complaint issued under this article

or article 7, failure to appear at a compliance conference or an

administrative hearing, or failure to report under section 16222 or

16223.

(j) Failure to pay an installment of an assessment levied

pursuant to the insurance code of 1956, 1956 PA 218, MCL 500.100 to

500.8302, within 60 days after notice by the appropriate board.

(k) A violation of section 17013 or 17513.

(l) Failure to meet 1 or more of the requirements for licensure

or registration under section 16174.

(m) A violation of section 17015 or 17515.

(n) A violation of section 17016 or 17516.

(o) Failure to comply with section 9206(3).

(p) A violation of section 5654 or 5655.

(q) A violation of section 16274.

(r) A violation of section 17020 or 17520.

(s) A violation of the medical records access act, 2004 PA 47,

MCL 333.26261 to 333.26271.

(t) A violation of section 17764(2).

Enacting section 1. This amendatory act takes effect January

1, 2013.